Olivia Garden was founded in Belgium in 1967 by husband and wife team Jean and Micheline Rennette (pictured right). According to its website, Olivia Garden was and continues to be a pioneer in hairstyling, including introducing the first truly silent blowdryer in 1979 and the first ceramic-ionic combination brush in 2002.
But Judge Gilliam brushed off Olivia Garden’s bid for patent and trade dress infringement damages when he granted Defendant Stance Beauty’s motion to dismiss for improper venue. In doing so, Judge Gilliam rejected Olivia Garden’s request to exercise “pendent venue.” Judge Gilliam enumerated various reasons why Olivia Garden failed to show that Stance Beauty had a “regular and established place of business” in the Northern District of California, including that Stance Beauty was incorporated in Connecticut, never maintained a place of business in California, and had no offices, retail locations, officers, employees, books, or records in California. Stance Beauty also had never attempted to become qualified or licensed to do business in California. Thus, Olivia Garden’s request failed to satisfy either prong of 35 U.S.C. § 1400(b) in view of TC Heartland.[1]
As part of its request, Olivia Garden argued “that judicial economy considerations favor the Court’s exercise of pendent venue, as granting [Stance Beauty’s] motion would effectively bifurcate this matter into” one action against a co-defendant for which venue was proper and another action in another court against the moving defendant. Judge Gilliam called this “pure conjecture” because Olivia Garden “[did] not claim, nor does it appear, that it has initiated this separate suit.” Judge Gilliam also noted that Olivia Garden failed to cite any case suggesting that courts after TC Heartland may exercise pendent venue over third parties in patent infringement actions. To the contrary, at least two courts in the Ninth Circuit have found otherwise: the Central District of California in California Expanded Metal[2], and the Western District of Washington in National Products[3]. Finally, the court denied Olivia Garden’s request for additional venue discovery because it “d[id] not explain what new facts additional discovery would unearth” and did not dispute Stance Beauty’s declaration testimony to the effect that exercising venue over Stance Beauty would be improper.
[Update as of August 9, 2018] The case was dismissed with prejudice two weeks later and it does not appear that Olivia Garden has refiled in another jurisdiction.
Endnotes:
[1] TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017).
[2] California Expanded Metal Prod. Co. v. Klein, Case No. CV18000242DDPMRWX, 2018 WL 204195 (C.D. Cal. Apr. 30, 2018).
[3] Nat’l Prod., Inc. v. Arkon Res., Inc., C15-1984JLR, 2018 WL 1457254 (W.D. Wash. Mar. 23, 2018).